Legal News Archive: October 2012

Crane accidents can cause serious injury and/or death not only for the operator[s] of the crane, but for unsuspecting individuals in neighboring buildings that get struck or those on the ground who have debris raining down upon them. This is especially so in a large metropolis such as New York City. For example, on the east side of Manhattan the collapse of a crane at a construction site killed the crane operator, injured a fellow worker and the owner of the crane company was indicted for manslaughter. More recently, while work was being done to extend the #7 train on the west side of Manhattan, a 120 foot crane snapped into two sections: one 80 feet in length and the other 40 feet in length. This resulted in the death of one construction worker, leaving another with serious injuries and three others with minor injuries.

A recent case, Pavone v. Marte, decided by Justice Bernard J. Graham on September 19, 2012, addresses the emergency doctrine, a New York rule adopted from the common law. The interesting facts are these: The defendant Marte was a counselor of a day camp who at the time, had a number of children in her charge as they were entering Central Park in Manhattan for a camp-sponsored outing. In keeping with her training, Marte stood in the middle of a crosswalk having crossed with the light, as she held up a “stop” sign for oncoming traffic so that her children could cross with safety. Before all of the children could reach the other side of the street however, the light changed. Marte continued to hold her “stop” sign up as a number of bicyclists approached the crosswalk. They stopped at her signal. The plaintiff Pavone, another bicyclist, was moving rapidly heading toward the crosswalk, and despite the presence of the “stop” sign being held by Marte, and notwithstanding her shouting to him to “stop” fearing he would either hit her or the children still in the crosswalk, he continued on without slowing down. It was then that Marte struck his arm on the “stop” sign causing him to fall off his bicycle, sustaining personal injuries. Pavone thereafter, brought suit in negligence against Marte who moved for summary judgment, asserting that the emergency doctrine should act as a legal bar to Pavone’s cause of action against her.

American law is essentially rooted in fairness. Thus it permits an injured plaintiff to sue for personal injuries, and conversely gives a concomitant right to a defendant to defend a case brought against it. Based upon that common law premise, neither party can willfully destroy evidence that the non-violating party has a legal right to inspect or assess. Were this is not the rule of law to be strictly enforced, evidence that would be adverse to a party could be destroyed at will, thus preventing the opposing party from using the “destroyed” evidence in order to support or defend its case.

The average patient is of the belief that a physician, who prescribes the wrong or unnecessary medicine, should be held liable to that patient based upon the malpractice of the physician. Such, however, is neither the law in New York nor in other jurisdictions. For a patient to recover damages under such circumstances, he/she must prove that the “wrong”, or “unnecessary” medicine was the proximate clause in producing the injury claim.

Questions often arise as to the rights of the citizen who claims police brutality and personal injury before, during, or after an arrest. Does such an individual have a cause of action against the allegedly offending police officer and the municipality or the state that employs him?

There are millions of vehicles on our nation's roads, which number increases with our population each year as the roadways necessary to handle the heavy flow seem to shrink. Inching along with bumper-to-bumper traffic is not only a frustration and time-waster, but a reality every motorist experiences. Thus, with hordes of traffic wherever you turn, and with every level of driver experience behind the wheel, the calculus for accidents is a built-in statistical certainty.

On October 5, 2012 a front-page article appeared in the business section of the New York Times, it's title, “Two Sides of Product Liability - A Factory’s Closing Focuses Attention On Tort Reform”. The article tells the story of the closing of a plant in Oklahoma [with the loss of 117 jobs] that since 1970 manufactured gasoline cans. Its present owners place the blame on “frivolous lawsuits” and greedy lawyers who through the years have recovered millions of dollars on behalf of users of their product who suffered injury from flash- back explosions of cans filled with gasoline.

With millions of students in public schools, accidents and injuries are a statistical reality. The legal questions that emerge in those cases where a student injured are: What is the duty the school owes to the student and what liability attaches to the school? The body of law that determines the liability of a school is in the category of negligence or tort law, which sets out the general principles that everyone, including schools, are responsible for their own wrong doing if the act that produced the harm is reasonably foreseeable, and if it is a substantial factor in causing the harm. The principle of law just stated when properly applied to the facts at issue will determine whether the injured student or the defendant school, prevails.

A party who claims injury through the neglect of another must institute suit within the period prescribed by law or be barred by the applicable statute of limitations. What is a statute of limitations and why does it exist in American law? Essentially, each right that is denied or infringed upon must be pursued within a specific time period against the party claimed to be responsible. For example, under New York law, the right to sue a defendant who is negligent or whose product injures a plaintiff, is three years from the date of the occurrence. The statute of limitations in a New York medical malpractice action is two and a half years from the date of the medical departure or two and a half years from the last date of treatment, so long as it was continuous. The statute of limitations varies with respect to other actions (contract, liable, slander, civil assault, etc.)

An action against New York City requires that a Notice of Claim be filed within ninety days of the event that is the subject of the claim. Essentially, the Notice of Claim must contain sufficient enough detail in order that the municipality will have an opportunity to timely investigate and assess the bona fides of the claim so as to prepare a litigation strategy that will address the claimant’s allegations.

For plaintiff to prevail in a medical malpractice action, he or she must establish two elements: 1) That the defendant departed from good and accepted practice in its treatment of the plaintiff, and: 2) That the departure was a proximate cause, or substantial factor in causing the injury claimed. These two elements will have to be answered by a jury in a series of questions contained in a verdict sheet with appropriate instructions given by the trial judge. There are those cases however, in which the defendants will challenge one or both elements in a motion for summary judgment on the grounds that the complaint fails to state a cause of action as to either a “departure from good and accepted practice”, or, that the “departure” if it existed at all, was not the “proximate cause” of the injury. As for the second element, “proximate cause” (or “causation”), the defendant can challenge plaintiff’s “causation” issue by offering affidavits from its own experts that no “causation” exists, or in the alternative, by seeking a Frye hearing for the purpose of presenting evidence that plaintiff’s expert’s statement on the issue of “proximate cause” is not generally accepted within the medical community, or stated another way, that it is nothing more than “junk science”.

In personal injury cases where a party’s mental or physical condition “is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician”. (CPLR §3121[a]) The party to be examined will receive a notice from the party seeking the examination providing the time, location and name of the designated physician as well as the conditions and scope of the examination. However, it cannot take place less than 20 days after the notice is served. A copy of the examining physician’s “detailed written report” containing his findings and conclusions will be furnished to the party who sought the examination who, in turn, is required to provide a copy to any other party upon request. (CPLR §3121[b])

Colella v. The Port Authority of New York and New Jersey (NYLJ, 10/1/12) is another example of how the trial courts seek to apply the various interpretations with respect to a worker seeking recovery for injuries incurred in an elevation-related task under New York’s “Scaffold Law” (Labor Law §240(1)).

It was during the fall of 1968 when a young Civil Court Judge left a meeting of the Queens County Bar Association with a unique thought. “There are highly respected ethnic-based lawyer organizations throughout. Why not a professional organization of Jewish lawyers in Queens?” he pondered. And so a wondrous idea was born out of an inspiration. The Judge? Leonard L. Finz. The organization? One made up of lawyers of the Jewish faith in Queens County.

Tragic events often are the prime movers for changes in the law. Nothing could be more dramatic in the evolution of our safety laws enacted to protect workers, than what occurred in 1911. Almost one hundred years ago, in a sweat shop in lower Manhattan, a fire broke out in a factory owned by the Triangle Waiste Company. The fire spread within minutes, there being no sprinklers or extinguishers. As sewing machine operators (mostly immigrant women), pressers, cutters, and others, attempted to escape the inferno, they rushed toward the only exit door which opened in, and not out, thus causing a pile-up of workers, who in panic, pushed and tried to climb over each other in their attempt to reach the exit door which was shut and blocked by those in a frenzy trying to get out. When the flames were finally extinguished by firefighters who fought valiantly to reach the trapped workers, they came upon the tragic toll - 146 dead, unable to escape through the only door jammed with bodies.

Medical Malpractice settlement in Pennsylvania for a young child who suffered from a severe injury to the intestinal tract due to a delay by the hospital and doctor in diagnosis and treating Necrotising Enterocolitis.Read More

Our client, a 52-year-old executive secretary had an extensive stay in a local Nassau County hospital. She was discharged and thereafter had persistent nausea and vomiting for a two-week period.Read More

Settlement with the State of New York in the Court of Claims for a victim who sustained brain damage while descending a recreational tube slide on a slope negligently designed by New York State.Read More

Verdict against Phillip Brothers Chemical Company, Inc. who failed to adequately warn a worker in an electroplating plant how to properly add zinc cyanide to a brass plating mixture resulting in an explosion causing burns and loss of vision in one eye.Read More

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The Finz & Finz, P.C. firm represents clients from New York and surrounding areas, including New York City (NYC), Brooklyn, Bronx, Queens, Manhattan, Staten Island, Nassau County, Suffolk County, throughout New York state and nationwide.